Sarah Whitham reviews the recent changes to Practice Direction 12J of the Family Procedure Rules 2010. Sir James Munby, President of the Family Division, has revised the rules to reinforce the court’s obligations in matters concerning domestic abuse.

Practice Direction 12J (Child Arrangements and Contact Orders: Domestic Violence and Harm (PD12J)) sets out what the Family Court is required to do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse.

Background

The practice direction was originally published in 2008, in part following concerns raised in a 2004 Women’s Aid report entitled “Twenty-Nine Child Homicides: Lessons still to be learnt on domestic violence and child protection”. Women’s Aid had compiled a list of 29 children in 13 families who were killed as a result of contact (or in one case, residence) arrangements in England and Wales between 1994 and 2004. In five of those families, contact had been ordered by the court.

The 2008 PD12J was amended in 2014, coinciding with the launch of the Child Arrangements programme.

In January 2016, as part of their Child First Campaign, Women’s Aid produced another report, “Nineteen Child Homicides: What must change so children are put first in child contact arrangements and the Family Court?”. The report made a number of recommendations designed to ensure that awareness of the practice direction was increased and that it was implemented robustly across the Family Courts.

Revisions to Practice Direction 12J

Supported by Women’s Aid, the All Party Parliamentary Group (APPG) on Domestic Violence conducted a Parliamentary Hearing chaired by Mr Justice Cobb to investigate the impact of unsafe child contact in families where there has been, or still is, domestic abuse.

As a result of that Parliamentary Hearing, Mr Justice Cobb proposed several changes to PD12J. The majority of these have now been incorporated by Sir James Munby in the new PD12J. Those changes came into force on 2 October 2017.

The amendments include:

  • A wider definition of “domestic abuse” instead of “domestic violence”. This now includes culturally specific forms of abuse and abandonment. The various terms within that definition are also defined individually.
  • Judges must satisfy themselves that any contact ordered with a parent who has perpetrated domestic abuse does not expose the child and/or other parent to the risk of harm, as well as such contact being in the best interests of the child.
  • Mr Justice Cobb recommended that, in cases where there is risk of harm to a parent or child as a result of the involvement of a parent in a child’s life, PD12J should be amended to provide that the presumption of contact should not apply. This recommendation has not been incorporated into the new PD12J. Sir James Munby has instead revised it to include an express instruction to the court to consider whether the presumption of contact applies in the case. In doing so, the court is to have particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence of such harm or risk of such harm.
  • There are amendments to the waiting arrangements at court prior to hearings and arrangements for entering and exiting the court building. These revisions were made specifically in response to reports by Women’s Aid. In a survery conducted by Women’s Aid in 2015, it was found that 55% of women respondents who had been to the Family Courts had no access to any special measures. Furthermore, 39% were physically abused by their former partner in the Family Court. The APPG report also spoke of women being followed, stalked, and harassed after leaving court.
  • Throughout PD12J, there are now mandatory requirements for the inclusion of certain specific matters to be recorded within the court’s order. For example, the court must ascertain at the earliest opportunity, and record on the face of its order, whether domestic abuse is raised as an issue which is likely to be relevant to any decision of the court, and specifically whether the child and/or parent would be at risk of harm in the making of any child arrangements order.

Proposed amendment regarding cross-examination of alleged victims

In addition to the above amendments, Mr Justice Cobb recommended an amendment intended to offer protection to an alleged victim of abuse from cross-examination by an unrepresented alleged perpetrator. Sir James Munby, however, noted the need for primary legislation on this issue before amendments to the practice direction could be made. Should such legislation be enacted, PD12J will require further revision.

Partner Adrian Clossick commented:

“Following a number of tragic cases in which children have been killed at the hands of abusive parents, the protection of children from harm is at the heart of PD12J. The intention of the amendments is to ensure that the practice direction is robustly implemented across the judiciary and it will be reliant upon the judiciary and practitioners to ensure compliance in every case.”